EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), effective as of the
date of the execution of the Purchase Agreement, as defined below, (such date,
the "Effective Date"), between DEBT RESOLVE, INC., a Delaware corporation (the
"Company"), and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company desires to retain the services of the
Executive and to that end desires to enter into a contract of employment with
him, upon the terms and conditions herein set forth; and
WHEREAS, the Executive desires to be employed by the Company
upon such terms and conditions;
NOW, THEREFORE, in consideration of the premises and of the
mutual benefits and covenants contained herein, the parties hereto, intending to
be bound, hereby agree as follows:
1. APPOINTMENT AND TERM
--------------------
Subject to the terms hereof, the Company hereby employs the
Executive, and the Executive hereby accepts employment with the Company, all in
accordance with the terms and conditions set forth herein, for a period of three
(3) years commencing on the first business day following the closing date (the
"Commencement Date") of the acquisition by the Company of all
of the outstanding limited liability membership interests of Creditors
Interchange Receivable Management, LLC ("CIRM") contemplated by the Securities
Purchase Agreement, dated as of April 30, 2007 (the "Purchase Agreement"), and
ending on the third anniversary of such date (the "Expiration Date"), unless the
parties mutually agree in writing upon a later date or the Executive's
employment hereunder is automatically extended as provided in Section 7(g)
hereof. The Executive shall (i) serve as President of First Performance
Corporation ("FPC"), as a wholly-owned subsidiary of the Company, and (ii) serve
as Executive Vice President-Operations of CIRM, as a wholly-owned subsidiary of
the Company, and shall report directly to the President and CEO of CIRM, ▇▇▇▇▇
▇▇▇▇. If the Securities Purchase Agreement is terminated without the occurrence
of the contemplated acquisition, then the Agreement becomes null and void.
2. DUTIES
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(a) Executive will have full operational and decision making
control of FPC, as a wholly-owned subsidiary of the Company, and shall have such
operational duties, authority and responsibilities commensurate with running a
wholly-owned subsidiary of the Company, including, but not limited to,
management of the operations, personnel, profit and loss and budget of FPC.
Further, in his capacity as Executive Vice President-Operations of CIRM,
Executive shall have responsibility for all debt-collection operations of CIRM,
subject to the direction of ▇▇▇▇▇ ▇▇▇▇, CIRM's President and CEO.
(b) The Company agrees that all current department and
management level employees of FPC shall report directly to Executive. FPC and
FPC's employees shall work
directly with the Company's corporate personnel staff on issues pertaining to
public company-wide compliance, as well as on mutually agreed-upon goals.
(c) During the term of this Agreement, the Executive shall,
unless prevented by incapacity, devote substantially all of his time, attention
and ability to the discharge of his duties hereunder and to the faithful and
diligent performance of such duties and the exercise of such powers as may be
assigned to or vested in him by the Board of Directors of the Company (the
"Board"), the Chief Executive Officer of the Company, and the President and CEO
of CIRM such duties to be consistent with his positions. The Executive shall
obey the lawful and reasonable directions of the Board, the Chief Executive
Officer of the Company and the CEO of CIRM and shall use his diligent efforts to
promote the interests of the Company and to maintain and promote the reputation
thereof.
(d) The Executive shall not, during his term of employment
(except as a representative of the Company or with the prior written consent of
the Chief Executive Officer), be directly or indirectly engaged or concerned or
interested in any other business or commercial activity, except through
ownership of an interest of not more than five percent (5%) in any entity that
does not compete with the Company.
(e) Notwithstanding the foregoing provisions, the Executive
shall be entitled to serve in various leadership capacities in civic, charitable
and professional organizations or managing the Executive's personal and family
passive investments; provided in each case, and in the aggregate, that such
activities do not materially conflict or interfere with the performance of the
Executive's duties hereunder. The Executive recognizes that his primary and
paramount responsibility is to the Company.
(f) The Executive shall be based in the Buffalo, New York
area, except for required travel on the Company's business.
3. REMUNERATION
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(a) Base Salary. As compensation for his services pursuant
hereto, the Executive shall be paid a base salary during his employment
hereunder at the salary of $300,000 per year. This amount shall be subject to
all applicable withholding and other taxes and shall be payable in equal
periodic installments in accordance with the usual payroll practices of the
Company. The Chief Executive Officer, the Compensation Committee of the Board of
the Company and the CEO of CIRM, shall review the compensation of the Executive
annually, and in their sole discretion, may from time to time authorize
increases in the base salary of the Executive. The Executive's base salary may
only be reduced at the direction of the Compensation Committee of the Board of
the Company.
(b) Annual Bonus. The Executive shall be eligible to receive a
bonus (the "Annual Bonus"), which shall be determined in accordance with Exhibit
A attached hereto. No modifications to Exhibit A hereof shall be made without
the prior written approval of each of (i) the Executive, (ii) the CEO, and (iii)
the Compensation Committee of the Board.
(c) Stock Options. The Executive shall be granted stock
options (the "Stock Options"), which entitle him to purchase 400,000 shares of
common stock, par value $.001 per share, of the Company at an exercise price
equal to the price at of the Company's common stock on the close of trading on
the day upon which the Purchase Agreement is executed, which options shall vest,
(1) as to 33% of such shares, on the first anniversary of the Effective Date,
(2) as to 33% of such shares, on the second anniversary of the Effective Date,
and (3) as to 34% of
such shares, on the third anniversary of the Effective Date, and in each case
pursuant to a customary stock option agreement which will contain the terms
pertaining to the Stock Options contained in this Section 3(c), which the
Executive and the Company shall enter into within five (5) days after the
execution of this Agreement. Except as otherwise expressly provided in this
Agreement, the Stock Options will expire ten years after they are granted.
Further, the Executive shall be entitled to participate in the Company's stock
option grant program for the grant of stock options, on the same basis as other
executives of the Company, which plan the Company shall use best efforts to have
in place by December of 2007.
(d) The Company shall cause CIRM to adhere to its current
policy of providing to Executive a car allowance, use of a cell phone, laptop
computer, Blackberry Wireless Handheld Device, and reimbursement for gas
expenses and mileage during business trips.
(e) Except as provided above, and in Sections 4, 6, and 7
hereof, the Executive shall not be entitled to receive any additional
compensation, remuneration or other payments from the Company.
4. HEALTH INSURANCE AND OTHER FRINGE BENEFITS.
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The Company agrees that the current level of health, dental,
medical and other plans or benefits currently provided to the Executive by CIRM
shall be maintained by the Company for at least the term of this Agreement. The
Company further agrees that the costs associated with Executive's (i) health
insurance with prescription drug coverage, (ii) dental insurance, (iii)
long-term disability insurance, (iv) short-term disability insurance and (v)
life insurance shall continue to be paid for him by CIRM. Notwithstanding the
immediately
preceding sentence, if during the term of this Agreement the Company procures
insurance coverage for the Company's employees that provide more favorable terms
than those provided to the Executive, then the Executive shall be entitled to
participate in the more favorable insurance coverage. Further, if and to the
extent that the Company wishes to find a lower cost provider with respect to
plans or benefits provided to the Executive (even if such lower cost provider
shall provide the same level of benefits), the Company agrees to obtain the
prior written consent of the Executive prior to changing providers of plans or
benefits provided to the Executive. In addition to the foregoing, the Executive
shall participate on an equitable basis in any other plans, programs, and
benefits of the Company, if any, to the extent his position, tenure, salary,
age, health, or other qualifications make him eligible to participate.
5. VACATION
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The Executive shall be entitled to four (4) weeks vacation (in
addition to the usual national holidays) during each contract year during which
he serves hereunder. Such vacation shall be taken at such time or times as
reasonably requested by the Executive. Vacation not taken during a calendar year
may not be carried forward.
6. REIMBURSEMENT FOR EXPENSES
--------------------------
The Executive shall be reimbursed for reasonable and necessary
documented business expenses incurred in connection with the business of the
Company in accordance with practices and policies established by the Company.
With respect to credit cards used for business, travel (including mileage and
gas reimbursement) and other business use in connection with discharging duties
and obligations for CIRM, Executive agrees to adhere to the Company's internal
policies to assure that there is compliance with all applicable rules and
regulations
(including without limitation, regulations promulgated pursuant to the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002) and the use of business credit cards only for
business purposes.
7. TERMINATION
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(a) This Agreement shall terminate in accordance with the
terms of Section 7(b) hereof; provided, however, that such termination shall not
affect the obligations of the Executive pursuant to the terms of Sections 8 and
9 hereof.
(b) This Agreement shall terminate on the Expiration Date; or
as follows:
(i) Upon the written notice to the Executive by the
Company at any time, because of (v) the willful and material malfeasance,
dishonesty or habitual drug or alcohol abuse by the Executive demonstrably
related to or demonstrably affecting the performance of his duties; (w) the
Executive's continuing and intentional breach, non-performance or non-observance
of any of the terms or provisions of this Agreement, but only after notice by
the Company of such breach, nonperformance or nonobservance and the failure of
the Executive to cure such default within thirty (30) days after the Company's
delivery of such notice; (x) the conduct by the Executive which the Board in
good faith determines could reasonably be expected to have a material adverse
effect on the business, assets, properties, results of operations, financial
condition, personnel or prospects of the Company (within each category, taken as
a whole), but only after notice by the Company of such conduct and the failure
of the Executive to cure same within thirty (30) days after the Company's
delivery of such notice; (y) upon the Executive's conviction of a felony, any
crime involving moral turpitude (including, without limitation, sexual
harassment) related to or affecting the performance of his duties or any act of
fraud, embezzlement, theft or willful breach of fiduciary duty against the
Company; or (z)
the determination, during the one-year period following the Closing under, and
as defined in, the Purchase Agreement, that the representations made by the
Executive in Section 4 of the Purchase Agreement contained any material
misrepresentations (clauses (v)-(z), collectively referred to as "Cause") .
(ii) In the event the Executive, by reason of physical or
mental disability, shall be unable to perform the services required of him
hereunder with or without reasonable accommodation for a period of more than 90
consecutive days, or for more than a total of 120 non-consecutive days in the
aggregate during any period of twelve (12) consecutive calendar months, on the
91st consecutive day, or the 121st day, as the case may be. The Executive
agrees, in the event of any dispute under this Section 7(b)(ii), and after
written notice by the Board, to submit to a physical examination by a licensed
physician practicing in Western New York selected by the Board, and reasonably
acceptable to the Executive.
(iii) In the event the Executive dies while employed
pursuant hereto, on the last day of the month in which his death occurs.
(iv) Upon sixty (60) days' written notice by the
Executive to the Company, in the event that the Company (A) shall not comply
with any material provision of this Agreement and shall not have cured any such
failure within thirty (30) days after written notice of such noncompliance has
been given by the Executive to the Company, (B) shall assign to the Executive
any duties that are materially inconsistent with his status or that materially
diminish his duties, responsibilities, or authority hereunder, (C) reduces the
Executive's Base Salary, (D) dimishes the Executive's then title, or (E) causes
the Executive to relocate outside of Buffalo, New York.
(v) Upon sixty (60) days' prior written notice by the
Company to the Executive, without Cause.
(c) Termination for Cause. If this Agreement is terminated
pursuant to Section 7(b)(i), then, other than as set forth in this Agreement,
the Company will have no further liability to the Executive after the date of
termination including, without limitation, the compensation and benefits
described herein. In the case of termination pursuant to Section 7(b)(i)(z), the
Company's right to terminate this Agreement shall be the Company's sole and
exclusive remedy under this Agreement with respect to material
misrepresentations contained in Section 4 of the Purchase Agreement, provided
that the foregoing shall not relieve the Executive of any liability he may have
specifically as a "Seller" for any misrepresentation or breach of warranty made
by the Executive in the Purchase Agreement. In the case of termination pursuant
to Section 7(b)(i) hereof, all Stock Options shall be immediately forfeited.
From and after the date of such termination, Executive shall continue to be
subject to the terms of Section 8 and Section 9 hereof.
(d) Termination due to Disability. In the case of termination
pursuant to Section 7(b)(ii), the Executive will receive his then current salary
until such time (but not more than 180 days after such termination for
disability) as payments begin under any long term disability insurance plan of
the Executive, if any.
(e) Termination due to Death of Executive. In the case of
termination pursuant to Section 7(b)(iii), the Executive will receive his salary
to the date of termination.
(f) Constructive Termination or Termination without Cause. In
the case of termination pursuant to Section 7(b)(iv)(B) or Section 7(b)(v), the
Executive will receive from
the Company (i) the greater of one year's Base Salary plus the projected Tier 1
bonus for the year for the Executive, as set forth on Exhibit A attached hereto
or the Base Salary plus the projected Tier 1 bonus due for the remainder of the
Agreement, (ii) full vesting on all outstanding Stock Options and the right to
exercise all Stock Options that have been granted, effective as of the date of
the termination for a period of 90 days following the date of such termination
(one year in the event of death or disability of the Executive), and (iii) the
right to receive medical benefits directly or as COBRA payments (in either
instance, at the Company's discretion and its cost) for a period of one year,
with the understanding that the Company shall continue to pay premiums for
disability benefits during the one year period. The cash severance shall be paid
out in equal installments over a one year period, subject to any required delay
in the start of the severance payments required to avoid taxation under Section
409A of the Internal Revenue Code. The payments pursuant to this paragraph are
contingent on Executive complying with the provisions of Section 8 and Section 9
of this Agreement.
(g) In the event the Company chooses not to enter into any
agreement or amendment extending the Executive's employment beyond the
Expiration Date, the Company agrees to provide Executive at least three (3)
months' prior written notice of such determination, during which time the
Executive may seek alternative employment while still being employed by the
Company, and in this event, the Executive will receive as severance (i) one
year's Base Salary plus the projected Tier 1 bonus for the year for the
Executive, as set forth on Exhibit A attached hereto; (ii) full vesting on all
outstanding Stock Options and the right to exercise all Stock Options that have
been granted, effective as of the date of the termination for a period of 90
days following the date of such termination (one year in the event of death or
disability of the Executive) and (iii) and the right to receive medical benefits
directly or as COBRA payments (in
either instance, at the Company's discretion and its cost) for a period of one
year, with the understanding that the Company shall continue to pay premiums for
disability benefits during the one year period. The cash severance shall be paid
out in equal installments over a one year period, subject to any required delay
in the start of the severance payments required to avoid taxation under Section
409A of the Internal Revenue Code. The payments pursuant to this paragraph are
contingent on Executive complying with the provisions of Section 8 and Section 9
of this Agreement. If the Company does not provide the Executive with at least
three (3) months' prior written notice of such determination, then the
Executive's employment hereunder shall be automatically renewed for a period of
one year commencing on the day following the Expiration Date.
(h) Change of Control. If there is a Change of Control (as
defined below), and subsequent thereto the Executive's employment with the
Company terminates at any time after such Change of Control for reasons other
than as provided in Section 7(b)(i), then the Executive shall receive (i) (i)
the greater of one year's Base Salary plus the projected Tier 1 bonus for the
year for the Executive, as set forth on Exhibit A attached hereto or the Base
Salary plus the projected Tier 1 bonus due for the remainder of the Agreement,
(ii) full vesting on all outstanding Stock Options and the right to exercise all
Stock Options that have been granted, effective as of the date of the
termination for a period of 90 days following the date of such termination (one
year in the event of death or disability of the Executive) and (iii) the right
to receive medical benefits directly or as COBRA payments (in either instance,
at the Company's discretion and its cost) for a period of one year, with the
understanding that the Company shall continue to pay premiums for disability
benefits during the one year period. The payments provided for in this paragraph
are subject to Executive's compliance with the terms of Section 8
and Section 9 of this Agreement. A Change of Control shall be deemed to have
occurred at such time as any person, other than the Company, its existing
shareholders or any of its or their affiliates on the date hereof, purchases the
"beneficial ownership" (as defined in Rule 13d 3 under the Securities Exchange
Act of 1934), directly or indirectly, of 50% or more of the combined voting
power of voting securities then ordinarily having the right to vote for
directors of the Company; provided, that a Change of Control shall not be deemed
to have occurred with respect to the transactions contemplated by the Purchase
Agreement or the acquisition financing in connection therewith.
8. CONFIDENTIAL INFORMATION
------------------------
(a) The Executive covenants and agrees that he will not at any
time during the continuance of this Agreement or at any time thereafter (i)
print, publish, divulge or communicate to any person, firm, corporation or other
business organization (except in connection with the Executive's employment
hereunder) or use for his own account any proprietary secret or confidential
information relating to the business of the Company (including, without
limitation, information relating to any customers, suppliers, employees,
products, services, formulae, technology, know-how, trade secrets or the like,
financial information or plans) or any proprietary secret or confidential
information relating to the affairs, dealings, projects and concerns of the
Company, both past and planned (the "Confidential Information"), which the
Executive has received or obtained or may receive or obtain during the course of
his employment with the Company (whether or not developed, devised or otherwise
created in whole or in part by the efforts of the Executive), or (ii) take with
him, upon termination of his employment hereunder, any information in paper or
document form or on any computer-readable media relating to the foregoing. The
term "Confidential Information" does not include
information which is or becomes generally available to the public other than as
a result of disclosure by the Executive or which is generally known in the
consumer debt collection business. The Executive further covenants and agrees
that he shall retain the Confidential Information received or obtained during
such service in trust for the sole benefit of the Company or its successors and
assigns.
(b) The term Confidential Information as defined in Section
8(a) hereof shall include information obtained by the Company from any third
party under an agreement including restrictions on disclosure known to the
Executive.
(c) In the event that the Executive is requested pursuant to
subpoena or other legal process to disclose any of the Confidential Information,
the Executive will provide the Company with prompt written notice so that the
Company may seek a protective order or other appropriate remedy and/or waive
compliance with Section 8 of this Agreement. In the event that such protective
order or other remedy is not obtained or that the Company waives compliance with
the provisions of Section 8 of this Agreement, the Executive will furnish only
that portion of the Confidential Information which is legally required.
9. RESTRICTIONS DURING EMPLOYMENT AND FOLLOWING TERMINATION
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(a) The Executive shall not, anywhere within the United States
or in any other country or jurisdiction in which the Company may operate, or may
contemplate operating in, during his employment and for a period of one (1) year
thereafter without the prior written consent of the Company, directly or
indirectly, and whether as principal, agent, officer, director, partner,
employee, consultant, broker, dealer or otherwise, alone or in association with
any other person, firm, corporation or other business organization, carry on, or
be engaged, have an interest
in or take part in, or render services to any person, firm, corporation or other
business organization (other than the Company) engaged in a business which is
competitive with all or part of the Business of the Company. The term "Business
of the Company" shall mean the collection of consumer debt or any other business
in which the Company may be engaged, or may contemplate engaging in, during the
term of this Agreement.
(b) During the Executive's employment and for a period of one
(1) year thereafter, either on his own behalf or on behalf of any other person,
firm, corporation or other business organization, endeavor to entice away from
the Company any person who, at any time during the continuance of this
Agreement, was an employee of the Company.
(c) During the Executive's employment and for a period of one
(1) year thereafter, either on his own behalf or on behalf of any other person,
firm, corporation or other business organization, solicit or direct others to
solicit, any of the Company's customers or prospective customers (including, but
not limited to, those customers or prospective customers with whom the Executive
had a business relationship during his term of employment) for any purpose or
for any activity which is competitive with all or part of the Business of the
Company.
(d) It is understood by and between the parties hereto that
the foregoing covenants by the Executive set forth in this Section 9 are
essential elements of this Agreement and that, but for the agreement of the
Executive to comply with such covenants, the Company would not have entered into
this Agreement. It is recognized by the Executive that the Company currently
operates in, and may continue to expand its operations throughout, the
geographical territories referred to in Section 9(a) above. The Company and the
Executive have
independently consulted with their respective counsel and have been advised in
all respects concerning the reasonableness and propriety of such covenants.
10. REMEDIES
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(a) Without intending to limit the remedies available to the
Company, it is mutually understood and agreed that the Executive's services are
of a special, unique, unusual, extraordinary and intellectual character giving
them a peculiar value, the loss of which may not be reasonably or adequately
compensated in damages in an action at law, and, therefore, in the event of any
material breach by the Executive that continues after any applicable cure
period, the Company shall be entitled to equitable relief by way of injunction
or otherwise.
(b) The covenants of each of Sections 8 and 9 hereof shall be
construed as independent of any other provisions contained in this Agreement and
shall be enforceable as aforesaid notwithstanding the existence of any claim or
cause of action of the Executive against the Company, whether based on this
Agreement or otherwise. In the event that any of the provisions of Sections 8 or
9 hereof should ever be adjudicated to exceed the time, geographic,
product/service or other limitations permitted by applicable law in any
jurisdiction, then such provisions shall be deemed reformed in any such
jurisdiction to the maximum time, geographic, product/service or other
limitations permitted by applicable law.
11. COMPLIANCE WITH OTHER AGREEMENTS
--------------------------------
The Executive represents and warrants to the Company that the
execution of this Agreement by him and his performance of his obligations
hereunder will not, with or without the giving of notice or the passage of time
or both, conflict with, result in the breach of any provision
of or the termination of, or constitute a default under, any agreement to which
the Executive is a party or by which the Executive is or may be bound.
12. WAIVERS
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The waiver by the Company or the Executive of a breach of any
of the provisions of this Agreement shall not operate or be construed as a
waiver of any subsequent breach.
13. BINDING EFFECT; BENEFITS
------------------------
This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective successors, assigns, heirs
and legal representatives, including any corporation or other business
organization with which the Company may merge or consolidate or sell all or
substantially all of its assets. Insofar as the Executive is concerned, this
contract, being personal, cannot be assigned.
14. NOTICES
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All notices and other communications which are required or may
be given under this Agreement shall be in writing and shall be deemed to have
been duly given when delivered to the person to whom such notice is to be given
at his or its address set forth below, or such other address for the party as
shall be specified by notice given pursuant hereto:
(a) If to the Executive, to him at:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
(b) If to the Company, to it at:
Debt Resolve, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
with a copy to:
▇▇▇▇▇▇▇▇▇ Traurig, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
15. MISCELLANEOUS
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(a) This Agreement contains the entire agreement between the
parties hereto and supersedes all prior agreements and understandings, oral or
written, between the parties their subsidiaries, parents, and affiliates,
including but not limited to any agreements between the Executive and Creditors
Interchange Receivable Management, LLC, hereto with respect to the subject
matter hereof. This Agreement may not be changed, modified, extended or
terminated except upon written amendment approved by the Board and executed by a
duly authorized officer of the Company and the Executive.
(b) The Executive acknowledges that from time to time, the
Company may establish, maintain and distribute employee manuals of handbooks or
personnel policy manuals, and officers or other representatives of the Company
may make written or oral statements relating to personnel policies and
procedures. Such manuals, handbooks and statements are intended only for general
guidance. No policies, procedures or statements of any nature by or on behalf of
the Company (whether written or oral, and whether or not contained in any
employee manual or handbook or personnel policy manual), and no acts or
practices of any nature, shall be
construed to modify this Agreement or to create express or implied obligations
of any nature to the Executive.
(c) This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
(d) All questions pertaining to the validity, construction,
execution and performance of this Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to its
conflict of law principles.
(e) Any controversy or claim arising from, out of or relating
to this Agreement, or the breach hereof (other than controversies or claims
arising from, out of or relating to the provisions in ▇▇▇▇▇▇▇▇ ▇, ▇ ▇▇▇ ▇▇),
▇▇▇▇▇ ▇▇ determined by final and binding arbitration in Westchester County, New
York, in accordance with the Employment Dispute Resolution Rules of the American
Arbitration Association, by a panel of not less than three (3) arbitrators
appointed by the American Arbitration Association. The decision of the
arbitrators may be entered and enforced in any court of competent jurisdiction
by either the Company or the Executive.
The parties indicate their acceptance of the foregoing
arbitration requirement by initialing below:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------- -------------------------
For the Company Executive
(f) If any provision of this Agreement is held to be illegal,
invalid, or unenforceable under present or future laws, such provision shall be
severable, and this
Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part of this Agreement, and the
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by such illegal, invalid, or unenforceable provision or by
its severance from this Agreement. Furthermore, in lieu of such illegal,
invalid, or unenforceable provision, there shall be added automatically as a
part of this Agreement a provision as similar in terms to such illegal, invalid,
or unenforceable provision as may be possible and be legal, valid, and
enforceable.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
DEBT RESOLVE, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chief Executive Officer
EXECUTIVE
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇
EXHIBIT A TO THE EMPLOYMENT AGREEMENT,
DATED APRIL 30, 2007, BETWEEN
DEBT RESOLVE, INC. AND ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tier 1 Bonus- Based On Meeting EBIDTA Goals (Comprises 85% of Bonus) and
"Integration of Dr Technology & Products to CIRM Customer Accounts" Goal
(Comprises 15% of Bonus)
Percentage
Breakdown
60% CIRM Goals
25% FPC Goals
15% DR Goals
Note as to Schedule of Bonus Achieved:
* If Executive Reaches 100% of CIRM Goals, He is Entitled to Receive
Bonus of 25% of Base Salary
* If Executive Reaches Between 85% and Under 100% of CIRM Goals,
Executive is Entitled to Receive 15% of Base Salary
* If Executive Achieves Under 85% of CIRm Goals, Bonus Grant is At
the Discretion of the Board
CIRM 2007 2008 2009
Revenue $59.8M $66.6M $80.8M
Ebitda % 15% 16% 17%
Ebitda Goals 8.1M* 10.6M 13.7M
*Agreed that 9.0 % would be changed to 8.1%
FPC 2007* 2008 2009
Revenue $7.0M $10.6M $13.7M
Ebitda % 12% 14% 16%
Ebitda Goals Break Even and Provide List of What Will $1.3M $2.2M
Be Instituted by End of Year to Achieve
Future Objectives
* Measured for second half (6 months) of 2007
DR 2007 2008 2009
% of Customer 15% 30% 55%
Accounts
"EBITDA" shall mean the sum of the following amounts A) Net income, plus B)
charges against income for foreign, federal, state and local income taxes, plus
C) interest expense, plus D) amortization and depreciation expense, including
amortization of goodwill and other intangible assets, minus E) interest income,
minus F) non-recurring gains which have been included in the determination of
net income, plus any of the transaction costs and expenses incurred (and which
have been included in the determination of net income) in connection with the
acquisition of Creditor's Interchange Inc. To the extent extraordinary losses or
extraordinary gains have been considered in the determination of EBITDA, the
Board will reasonably consider subtracting such loss or adding back such gain to
the computation of actual EBITDA depending on the circumstances giving rise to
such loss or gain and the cash position of the Company.
